(Updates with Breyer comment in fourth paragraph.)
Oct. 12 (Bloomberg) -- The U.S. Supreme Court questioned whether jails can constitutionally search the private body parts of all new prisoners, including those arrested for traffic violations.
During an hour-long argument full of graphic descriptions of jailhouse strip-search protocols, the justices today sought to draw a line that would both prevent the smuggling of weapons and drugs and protect the privacy interests of people arrested for minor violations.
Several justices questioned whether jails needed to strip- search people charged with nonviolent offenses, pointing to studies indicating that intrusive searches of such people rarely uncover hidden items.
“It’s very hard to find somebody who really was in this minor offender category who really was found to have contraband,” Justice Stephen Breyer said.
In the case before the justices, Albert W. Florence says he was strip-searched twice during the week he was jailed following his arrest for failing to pay a years-old fine -- a penalty that in reality he had already paid. Florence is suing officials from two New Jersey counties -- Burlington and Essex -- over the searches.
Federal appeals courts around the country are divided on the issue, which turns on the Constitution’s Fourth Amendment. Florence argues that officials must have “reasonable suspicion” to perform an intrusive strip search on people charged with minor offenses.
Both sides in the case today sought to narrow the issues before the court. The lawyer for the two counties, Carter Phillips, said jail officials might be barred from touching inmates during a search.
Florence’s lawyer, Thomas Goldstein, allowed that jails could perform body-cavity inspections on certain categories of inmates, such as those charged with violent offenses. He also said all new inmates could be required to strip naked and shower in front of guards, as long as officials stopped short of a close-range search of a prisoner’s genitals and anus.
That distinction was lost on Justice Sonia Sotomayor.
“It’s OK to stand five feet away, but not two?” she asked. She added, “That’s a line that doesn’t make much sense to me.”
According to his complaint, Florence was riding with his wife and 4-year-old child in a BMW sports-utility vehicle when a New Jersey state trooper stopped the family for a traffic offense.
The complaint says the trooper discovered that Florence was wanted on a bench warrant in Essex County. The officer handcuffed Florence and placed him under arrest, allegedly ignoring an official document the man presented to show that he had paid the fine. Florence says he carried the letter because of a tendency of officers to pull over black men driving nice cars.
Florence was driven to the Burlington County Jail, where he says he was taken into a stall with a partially opened curtain, ordered to disrobe and made to lift his tongue, arms and genitals in front of an officer. He says he was transferred to an Essex County facility six days later and strip-searched again, this time along with four other men.
“It’s laugh out loud funny to think he is smuggling something into this jail,” Goldstein argued.
Florence says he saw a judge for the first time the following day and was ordered to be immediately released.
Phillips, the counties’ lawyer, called Florence’s improper arrest “disturbing.” At the same time, the attorney said jailers shouldn’t be forced to pick and choose which inmates to subject to a full-scale search. He urged the justices to respect the “good-faith judgment of our jailers.”
Justice Anthony Kennedy suggested he agreed with that reasoning, telling Goldstein that a search-everybody policy ensures that officers won’t single out inmates on the basis of race or some other improper factor.
“Your rule imperils individual dignity in a way that the blanket rule does not,” Kennedy said.
Justice Antonin Scalia said he was skeptical that the searches of Florence amounted to a constitutional violation.
“At the time the Fourth Amendment was adopted, this was standard practice, to strip search people who were admitted to prisons,” Scalia said. “So how could it be deemed an unreasonable invasion of privacy when it was done all the time and nobody thought it was unconstitutional?”
The Obama administration argued alongside the counties, urging the court to give jail officials broad latitude. Nicole Saharsky, a Justice Department lawyer, said federal jail officials don’t have enough information to decide whether a particular inmate needs to be searched.
“They have name, date of birth and the offense the person was charged with,” she said. “They don’t have anything else.”
Goldstein argued that the federal prison system already requires reasonable suspicion in the case of people arrested for minor offenses.
The original fine against Florence stemmed from a 1998 guilty plea for fleeing a traffic stop, according to Burlington County. Florence eventually paid $1,310, the county said.
A Philadelphia-based federal appeals court said the counties’ policies were reasonable ways to prevent prisoners from smuggling in weapons and drugs.
The case is Florence v. Board of Chosen Freeholders of the County of Burlington, 10-945.
--Editors: Justin Blum, Jim Rubin.
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